1) Parties: The terms and conditions set forth herein (“Agreement”) will govern the purchase of goods and services from Campbell Landscaping, LLC (“Campbell”) by the customer (“Customer”) as set forth in the Contract (“Contract”) entered into by Campbell and Customer (collectively referred to as the “Parties”).
2) Definitions: As used in this Agreement, the following terms are defined as such:
“Services”: the entirety of the goods and services that Campbell, its agents, or subcontractors provide to Customer for any purpose as described in the Contract.
“Service Cost”: the agreed-upon price between Campbell and Customer for the total cost of the Services as described in the Contract.
“Due Date”: Upon completion of the Services.
3) Services: Campbell shall provide to Customer the Services in accordance with the terms and subject to the conditions set forth in this Agreement. Campbell reserved the right to use autonomous equipment or mowers (“Autonomous Mowers”) to provide Services in its sole discretion.
4) Work: Customer agrees to pay the balance full-Service Cost for all Services purchased from Campbell pursuant to the terms of this Agreement and as shown on the Contract. Payment for any and all Services purchased will be made by check, cash, credit card, or wire transfer by the Due Date. If Customer uses a credit card as its payment method, 2.5% of the Service Cost will be added to the payment. In the event Customer fails to pay in full by the Due Date, the outstanding balance will be subject to a late fee equal to 1.5% for each month the outstanding balance remains unpaid (calculated as 18% per annum). All payments received will be applied first to any late fees and/or interest and thereafter to the cost of the Services. If Customer is unsatisfied with the completed work, Customer agrees not to withhold final payment, except Customer may withhold up to, but not exceeding, 10% of the Service Cost until the dispute is resolved in accordance with Paragraph 20.
5) Prices: All prices for Services will be set forth on the Contract and attachments thereto and will be binding on upon the Customer. Customer hereby expressly grants Campbell permission to fax and/or email prices for Services to the fax number and email address set forth below. All prices are exclusive of all city, state, and federal sales and excise taxes, including, without limitation, taxes on sales, receipts, or use.
6) Taxes: Customer will promptly pay Campbell any taxes which Campbell may be required to pay or collect upon the sale, delivery, storage, processing, use, and/or consumption of any of the Services.
7) Performance: Campbell will complete Services ordered by Customer at the location(s) specified by the Contract, subject to this Agreement. Delivery dates of Services are not guaranteed, and Campbell will not be held responsible for any delay in performance or delivery, regardless of cause. Customer further agrees that Campbell’s invoice will be conclusive of Campbell’s actual delivery and Customer’s receipt and acceptance of all Services indicated on the invoice unless Customer objects in writing within ten (10) days of the date of the invoice.
8) Default: Upon Customer’s default under any term or condition of this Agreement, including, without limitation, Customer’s payment obligations or insolvency as determined in the sole discretion of Campbell, and then Campbell may, at its option, stop completion of the Services until paid in cash, in full. Customer consents to Campbell filing a mechanic’s lien to protect its rights under this Agreement.
9) Recovery of Legal Fees and Costs: In the event it becomes necessary for Campbell to file a lawsuit to enforce the terms of this Agreement, or to collect any unpaid balance due to Campbell by Customer, and Campbell is granted a judgment wholly or partly in its favor, Campbell will be entitled to recover, in addition to all other remedies or damages, reasonable attorney’s fees, paralegal fees, expert fees, and court costs incurred in such lawsuit and for all proceedings brought and actions taken to collect on said judgment, to the fullest extent permitted by law, if at all.
10) Excess Costs. If at any time the Services require extra costs above the cost specified or estimated in the Contract that were reasonably unforeseen, but necessary (material cost increases due to inflation or market conditions), Campbell will present the Customer with a change order addendum to reflect the extra cost. The parties acknowledge and agree that Campbell is not required to get Customer’s consent for excess cost that is less than $5,000. Prior to the Customer’s acceptance of a change order addendum for any Services related to an excess cost, Campbell will disclose to the Customer that if the Customer fails to approve a change order addendum for excess cost, completion of the work may not be possible and a charge may be imposed for any disassembly, reassembly, or partially completed work, which shall be directly related to the actual labor or parts involved.
11) Specifications for Services.
a) Snow Plowing. Snow plowing, shoveling and/or de-icing coverage begins as required in the Contract. This applies to both seasonal and per visit agreements. Periodic plowing, shoveling and/or de-icing of those areas specified under this agreement are defined as follows: these services will be performed at the sole discretion of Campbell during an active storm depending on the snowstorm’s length at the sole discretion of Campbell during an active storm depending on the snowstorm’s length and severity. It is understood that, depending on the length and severity of the storm, it may take Campbell varying amounts of time to fulfill all work under this agreement. Campbell is not responsible for the following: damage to existing landscaping or any damages that occur to asphalt, concrete, stone or other surfaces as a result of snow plowing, shoveling and/or de-icing services. Campbell assumes no responsibility for vehicles parked illegally or in areas that Campbell has indicated to Customer to be in a location that causes a hazard or impedes the performance of its work. Customer understands that plowing, shoveling and/or de-icing of a particular location will not clear the area to “bare pavement” and that slippery conditions may continue to prevail even after plowing/shoveling or the application of de-icing materials. Campbell assumes no liability for this commonly occurring condition and Customer does hereby waive and release Campbell for any liability or damages in regard to such conditions. Customer agrees to defend and hold Campbell harmless for any and all claims or suits that may arise as a result of these conditions. In the event of extreme conditions (i.e., excessive temperature or snowfall totals) or it becomes necessary to move or remove piles of snow, there will be a charge of Ninety-five Dollars ($95.00) per hour for heavy equipment services. There will be a minimum of two (2) hours charged for equipment loading, destination charges and equipment unloading. This applies to both seasonal and per visit agreements. These services will be rendered at the discretion of Customer and as Campbell’s time permits.
b) Snow Shoveling. All entrances, walkways, stairways, and handicap access ramps will be serviced on an as needed basis to be determined by Campbell at such time as it has operators actively on site. During extreme conditions, Campbell has the right to focus its Services primarily on the primary entrances and exits of the Customers, then will complete services on the ancillary areas after the extreme conditions are complete.
c) De-Icing. De-icing materials of Campbell’s choice will be applied to the driveway/parking lot, walkway, stairways and handicap access ramp areas at its discretion. The decision as to when and how much material is to be applied is based on many factors including but not limited to: current ground temperature, current weather forecasts received by Campbell and future weather predictions. Campbell will exercise its judgment in providing the Services based upon existing conditions and future weather forecasts.
12) Cancellation. Except as otherwise stated in the Contract or in this Agreement, the Contract is not subject to cancellation or holdup upon completion of Services except with Campbell’s written consent, and only upon such terms agreed to by Campbell that will compensate Campbell for its loss from such cancellation or holdup upon completion of Services.
13) Effect of Termination.
a) The expiration or termination of this Agreement shall not release Customer from any obligation under this Agreement, unless this Agreement was terminated by Campbell for convenience.
b) Following termination of this Agreement for any reason other than for Campbell’s termination for convenience, Campbell will invoice Customer for any outstanding fees and expenses due and owing under the entire length of this Agreement and Customer must promptly pay all such outstanding fees and expenses, which includes costs and expenses described in Section 13(c), below (“Termination Fee”). The parties intend the Termination Fee to be liquidated damages constituting compensation, and not a penalty. The parties acknowledge and agree that damages resulting from termination would be impossible or very difficult to accurately estimate, and that the Termination Fee is a reasonable estimate of the anticipated or actual harm that may arise from such termination.
c) In the event that that Autonomous Mowers are used in the performance of the Services, Customer agrees to pay Campbell any and all installation costs associated with such Autonomous Mowers, which includes labor and material costs for buried wire, GPS units, etc.
d) Each Party shall promptly, following the expiration or termination of this Agreement, return to the other party all tangible property, including molds, equipment, materials, and tools, in its possession or control, belonging to the other party; and upon the other party’s request, certify in writing to the other Party that it has complied with the requirements of this Section 13(d).
14) Disclaimer: Campbell will not be responsible for any damage or injury resulting from or caused by its sale or completion of Services hereunder, including, without limitation, any delays or losses, unless such damage or injury is directly caused by the willful misconduct of Campbell or unless otherwise provided in this Agreement. Furthermore, Campbell will not be responsible for any damage or injury resulting to or caused by the completion, installation, storage, or use of the Services by Customer, including without limitation, that Campbell will not be liable for any damages that Campbell, its agents, or subcontractors cause to Customer’s driveways, walkways, patios, and other similar areas, whether concrete or otherwise, even if the party causing the damage was negligent. Campbell will not be liable for any damages caused in connection with any item in the landscape that is not readily apparent to Campbell or its agents during operation of the equipment. Customer understands that it has the responsibility of the health of the lawn and even after the best of lawn practices by Campbell, a lawn could develop bad health.
15) Non-Assignment. Customer may not assign or delegate its obligations under the Contract or under this Agreement without Campbell’s prior written consent; however, Campbell may assign or subcontract its obligations under the Contract or under this Agreement without Customer’s consent.
16) Force Majeure. Campbell will not be responsible for any acts or omissions of the Customer. Neither party will be responsible for any acts or omissions of the other party, nor for events beyond its reasonable control (hereinafter referred to as “Force Majeure”), including, but not limited to, Acts of God, changes of laws or regulations or other acts of government, labor disputes, strikes, riots, pandemics, epidemics, mobs, fires, floods, wars, embargoes, impossibility to obtain necessary material, labor, machinery, or transportation.
17) Governing Law. This Agreement will be interpreted under the laws of Ohio and the parties stipulate that this Agreement came into existence, and was entered into, in Stark County, Ohio. The parties agree that any lawsuits relating to or arising out of this Agreement, the Collateral, or the Services, including but not limited to, claims for personal injury, negligence, intentional torts, or breach of contract will be brought only in Stark County, Ohio.
18) Limitation of Damages. IN NO EVENT WILL CAMPBELL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT OR THE SERVICES PROVIDED BY CAMPBELL EVEN IF CAMPBELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM. IN NO EVENT WILL THE AGGREGATE LIABILITY OF CAMPBELL FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR THE COLLATERAL, WHETHER IN CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE, RECKLESSNESS, OR OTHERWISE, EXCEED THE TOTAL AMOUNT CUSTOMER HAS PAID CAMPBELL FOR THE SERVICES. Customer’s sole remedy will be repair, replacement, or a refund, as determined in the sole discretion of Campbell.
19) Indemnification by Customer. Customer covenants and agrees at all times to defend, hold harmless, and indemnify Campbell, its directors, shareholders, officers, employees, representatives, agents, successors, and assigns from and against any and all claims, actions, lawsuits, judgments, losses, damages, liabilities, costs, and expenses, including attorney’s fees, related expenses and any amounts paid in the defense or settlement, arising out of or in connection with any act or omission of Customer or any of its agents, employees, representatives, successors and assigns, the use of the products and services by Customer, or any other party, or as a result of Customer’s breach of this Agreement. Customer further agrees to take upon itself the settlement of such claims in the defense of any suit, suits, or legal proceedings of any kind brought to enforce such claim or claims, and to pay all judgments entered in such suit, suits, or legal proceedings, and all costs of attorney’s fees or other expenses. Customer agrees that in any instance where such claims in any way affect Campbell’s interest hereunder or otherwise, Customer shall not consummate any settlement without Campbell’s prior written consent. Customer covenants of indemnity herein shall continue in full force and effect notwithstanding any termination or expiration.
20) Warranty. Except as otherwise stated in the Contract, Campbell warrants that it will repair or replace, at its election, any Services manufactured, sold, installed, or completed by it that proves to be caused by defective workmanship within a period of three hundred and sixty (360) days from the date of original purchase or completion. This warranty covers normal use and does not cover damage or defect resulting from alteration, accident, neglect, improper installation, improper design, settlement or structural movement and/or movement of materials to which installed products are attached, lack of protection during application, operation, or maintenance, and any cause other than workmanship defects attributable to Campbell or assignee. The obligation of Campbell in this Section 20 is limited to the repair or replacement of the defective Services. Any components not manufactured by Campbell, but used as part of any Services sold by it will be warranted under the terms of the original manufacturer of the subject component, and not by Campbell. The Customer will give written notice of such defects to Campbell within 10 days of first knowledge.
EXCEPT AS SET FORTH HEREIN, Campbell makes NO representations, guarantees, or warranties, express or implied, including but not limited to, any warranty of merchantability, warranty of Workmanship, or warranty of fitness for a particular purpose, in connection with the SALE OF SERVICES HEREUNDER, AND HEREBY DISCLAIMS THE SAME.
21) Arbitration: The Parties agree that any claim, dispute or cause of action, of any nature, including but not limited to, those arising in tort, contract, statute, equity, law, fraud, intentional tort, breach of statute, ordinance, regulation, code, or other law, or by gross or reckless negligence, arising out of or related to, the negotiations of the Agreement, the Services provided, the performance or non-performance of the Agreement or any interaction of Customer and Amity Homes, its agents, or subcontractors, shall be subject to final and binding arbitration by an arbitrator appointed by the American Arbitration Association in accordance with the Construction Industry Rules of the American Arbitration Association and judgment may be entered on the award in a court of appropriate venue. Further, the Emergency Measures of Protection Rules shall be applicable. Each party shall be responsible for one-half of the arbitrator’s fees. The arbitration proceeding will include all parties to the construction process who have signed any document incorporating or referring to this Agreement. The arbitrator(s) shall determine all issues regarding the arbitrability of the dispute. The powers of the arbitrator(s) shall include all legal and equitable remedies, including but not limited to, money damages, declaratory relief, and injunctive relief. Should any party refuse or neglect to appear at and participate in arbitration proceedings after due notice, the arbitrator will make an award based on evidence introduced by the parties who do appear and participate. The parties understand that by agreeing to binding arbitration they are agreeing to arbitrate and not litigate their disputes and are giving up their right to a trial by jury, and to have a trial before a judge, or to seek remedies from a court.
22) Notices: Any notice required under this Agreement shall be made in writing and sent to the address of the appropriate party as it appears in the first Section of the Contract, unless such party has notified the other party, in writing, of a new mailing address. All notices under this Agreement shall be deemed duly given: (a) upon delivery if delivered by hand; (b) upon receipt by the addressee if sent by US mail; (c) upon the date signed for a receipt by a party to this Agreement if sent by US certified mail – return receipt requested; and (d) one business day after being deposited with an overnight delivery service.
23) Miscellaneous: The terms and conditions as set forth herein, as amended from time to time, will be binding upon and inure to the benefit of the parties, their successors, heirs, executors, representatives, and assigns. This Agreement and Contract state the entire agreement between the parties and neither party will be bound by any stipulations, representations, agreement, or promises, oral or otherwise, not contained in this Agreement or Contract. In the event the terms of the Contract and Agreement conflict, the Contract shall supersede this Agreement. This Contract and Agreement shall supersede all previous agreements between the parties, either oral or in writing, and may be amended only in a writing signed by both parties. If any term or provision of this Agreement is held to be invalid, void, or unenforceable, the remainder of the Agreement will remain in full force and effect and will in no way be affected, impaired, or invalidated, and this Agreement will be construed as if the invalid, void, or unenforceable provisions were omitted. Any waiver or failure of Campbell to require strict compliance with the provisions of this Agreement in any respect will not be deemed a waiver of Campbell’s right to insist upon strict compliance in other respects or thereafter in the same respect. All remedies provided to Campbell are in addition to its rights at law. No action or suit to enforce Customer’s rights or remedies arising from any purchase of Services by Customer will be commenced more than one year from the date of completion of the applicable Services.
CUSTOMER ACKNOWLEDGES THAT ALL SERVICES AND PRODUCTS TO BE PROVIDED BY CAMPBELL AND OBLIGATIONS OF THE CUSTOMER ARE SUBJECT TO THE TERMS AND CONDITIONS PROVIDED IN THIS AGREEMENT.
4865-5728-9796, v. 1